Jammu & Kashmir High Court
Giaso Ram vs State Of Jammu And Kashmir Through on 2 March, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 19.02.2024
Pronounced on 02.03.2024
WP(C) No. 3286/2019
1. Giaso Ram, age 64 years .....Appellant(s)/Petitioner(s)
2. Pritto (deceased) through his
son Ashok Kumar, age 57 years,
Petitioners No. 1 and 2 both S/o.
Sh. Thillo
3. Sohan Singh, age 37 years
4. Kulbir Singh, age 50 years
5. Bodh Raj, age 40 years,
Petitioners No. 3 to 5 all S/o.
Anchal
6. Vijay Kumar, age 54 years S/o.
Chemlo
7. Babu Ram, age 61 years S/o.
Jabru
8. Subash Chander, age 46 years,
S/o Late Sh. Dharam Chand
9. Subash Pal, age 23 years
10. Raj Kumar, age 27 years
Petitioners No. 9 & 10 Both S/o
Ashok Kumar & LRs of Late
Sh. Dharam Chand
11. Darshan Kumar (Minor),
aged____years
12. Vijay Kumar (Minor)
Aged_____years
13. Vishal Kumar (Minor)
age____years,
Petitioners No. 11 to 13 All S/o
Late Sh. Onkar Chand & LRs of
Late Sh. Dharam Chand,
Through their Paternal
Grandfather Petitioner No. 7.
All Petitioners R/o. Village
Pandrarh, Tehsil and District
Kathua
Through: Mr. Vikas Mangotra, Adv.
Q
vs
1. State of Jammu and Kashmir through ..... Respondent(s)
2 WP(C) No. 3286/2019
Commissioner/Secretary to
Government, Revenue Department,
J&K Government, Civil Secretariat,
Srinagar
2. Deputy Commissioner, Kathua
3. Collector Land Acquisition, Kathua
Through: Ms. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioners have filed the instant writ petition seeking a direction upon the respondents to release the compensation amount awarded in their favour in terms of award bearing No. ADCK/LA/321-26 dated 16.06.2007 without deduction of two-third amount.
2. According to the petitioners, they were owners of the land falling under khasra No. 293/103 situated at Village Kalna, Tehsil and District, Kathua. It has been submitted that the land in question was their ancestral land and in the year 2003, acquisition proceedings were initiated by the Collector Land Acquisition, Kathua in connection with expansion of industrial area at Village Kalna. On 16.06.2007 final award came to be passed by respondent No. 3-Collector but only a part of the compensation has been released in favour of the petitioners and the balance amount has been withheld without any rhyme and reason. Hence the instant writ petition.
3. Respondent No. 3-Collector Land Acquisition, Kathua, in his reply to the writ petition has submitted that the land measuring 1423 kanals and 08 marlas situated at Village Kalana, Tehsil and District, Kathua was acquired and in terms of award dated 16.06.2007, compensation in the amount of Rs. 8,64,76,689.30/- was assessed. It has been submitted that the land 3 WP(C) No. 3286/2019 measuring 163 kanals 16 marals in khasra No. 293/103 min situated at Village Kalna is part of the said acquisition. As per apportionment statement, share of petitioner No. 1 is shown as Rs. 9,93,600/- for land measuring 16 kanals, out of which one-third amount i.e. Rs. 3,31,200/- has been disbursed to him. Respondent No. 3 has taken a stand that only one- third land compensation has been paid to the petitioner(s) in view of the conditions laid down in Circular No. Rev-LB-10/80 dated 23.02.1980, according to which, only one-third compensation is to be paid to the allottees to whom the land has been allotted under various Government Orders etc.
4. The petitioners have filed a rejoinder to the reply filed by respondent No. 3 in which it has been submitted that they have acquired the ownership of the land in question as allottees in terms of Government Order No. LB/7-C of 1958 dated 05.06.1958. It has been contended that the Land Acquisition Act does not make any classification between "persons interested" as defined in Section 3(b) of the Land Acquisition Act, 1990, therefore, the Circular dated 23.02.1980 cannot be made applicable to the petitioners' case.
5. I have heard learned counsel for the parties and perused the record of the case.
6. So far as the factual aspects of the case are concerned, the same are not in dispute. It is an admitted case of the parties that the land belonging to the petitioners has been acquired by the respondents and compensation has been assessed in respect of the land in question. It is also an admitted fact 4 WP(C) No. 3286/2019 that the land of the petitioners that was acquired by the respondents allotted to them in terms of Government order No. LB/7-C of 1958 dated 05.06.1958. While the petitioners claim that being owners/allottees of the land in question, they are "interested persons" as such, entitled to full compensation, respondent No. 3 has taken a stand that in view of Circular No. Rev-LB-10/80 dated 23.02.1980 issued by the Revenue Department, the petitioners are only entitled to one-third of the compensation assessed. The question that requires to be determined is as to whether the petitioners can be denied full compensation in view of Circular dated 23.02.1980.
7. As already stated the petitioners have been granted ownership rights in respect of the land in question under Government order No. LB/7-C of 1958 dated 05.06.1958. Para (7) of Circular dated 23.02.1980 provides that only one-third compensation has to be paid in respect of allottees who have acquired the rights in respect of the land under different Government Orders etc. The same is reproduced as under:
"The allottees to whom the land has been allotted under various Ailans, Council Orders, Government Orders, as delineated in Schedule II of the Act of 1976 and also granted the proprietary rights thereof to the extent of such Ailans, council orders or Government Orders and the same was held in their cultivating possession in Kharif 1971, shall be entitled to compensation not as an absolute owner but as limited owner. These limited owners are precluded to transfer land by sale, gift mortgage, exchange or bequest or sublets it. Since they do not possess the attributes of an absolute owner, as such in their case the amount of compensation shall be 1/3rd in terms of para 4 of Part "A" of schedule III of the Act of 1976".
8. From a perusal of the aforesaid para, it is clear that the allottees of land under various Government orders etc, are to be paid only one-third compensation as provided in para (4) of Part A of Schedule III of the 5 WP(C) No. 3286/2019 Agrarian Reform Act. Para (4) of Part A of Schedule III of the Agrarian Reforms Act provides that for extinguishment of rights in land mentioned in Schedule II, one-third of the amount that should have been payable under paras (2) and (3) shall be payable as the amount. The Government order No. LB/7-C of 1958 finds a mention in Schedule II of the Agrarian Reforms Act. Therefore, in terms of para (4) of Part-A of the Agrarian Reforms Act, for extinguishment of rights in land allotted to a person under Government order No. LB/7-C of 1958, only one-third amount has to be paid.
9. Schedule-III of the J&K Agrarian Reforms Act, defines "amount" which finds mention in para (4) of Part-A of said Schedule as the sum of the money payable in lieu of extinguishment of rights in the land at rates other than market rates. It also defines "compensation" as sum of money payable for the land at market value. The word "amount" mentioned in Para (4) of Part-A of Schedule III bears reference to the "amount" as mentioned in various provisions in the J&K Agrarian Reforms Act and it does not bear reference to the amount of compensation assessed under the Land Acquisition Act. The question that falls for determination is as to whether the provisions contained in para (4) of Part-A of Schedule III of the Agrarian Reforms Act can be taken aid for the purposes of determining the entitlement of a person to the compensation, whose land has been acquired under the provisions of the Land Acquisition Act.
10. Before answering the aforesaid question, it would be apt to discuss the nature of rights that were conferred upon the petitioners in respect of the 6 WP(C) No. 3286/2019 acquired land by virtue of Government order No. LB/7-C of 1958. If we have a look at the provisions contained in Government Order No. LB/7-C of 1958, it provides for allotment of available evacuee and State lands for the purpose of cultivation, meaning thereby that the ownership of the land even after allotment vests with the State. This is clear from the copies of Revenue extracts placed on record by the petitioners, which clearly reflect that the State is shown as the owner of the land in question. Even in the apportionment statement annexed to the final award, the name of the owner is shown as State whereas in the column of tenant, the names of the petitioners have been reflected. The petitioners therefore, are not absolute owners of the land in question. They have only right of possession/cultivation of the land in question in terms of order No. LB/7-C of 1958.
11. Learned counsel for the petitioners has vehemently argued that the Schedule III of the J&K Agrarian Reforms Act, 1976 cannot be pressed into service for determining the entitlement of the petitioners to the compensation as the said Schedule is applicable to the payment of amount of compensation under the J&K Agrarian Reforms Act and not under the Land Acquisition Act. He has further contended that this Court in the cases of Nissar Hussain and others vs State of J&K, 2003(3) JKJ 228 and Lal Chand and others vs Collector Land Acquisition, Northern Railway, Jammu and others, 2000 Kash LJ 238 has held that Circular dated 23.02.1980 would not be applicable in the matters relating to award of compensation, as the same is only an administrative instruction issued by 7 WP(C) No. 3286/2019 the Revenue Department. On this ground it has been urged that the petitioners are entitled to full compensation.
12. If we have a look at the judgment passed by this Court in Nissar Hussain's case (supra), in the said case, the land in question belonged to the landlord and the proprietary rights in respect of the said land had not been conferred upon the tenant. The Court held that in view of the provisions contained in Section 8(4) of the Agrarian Reforms Act, the petitioners therein being original owners are entitled to full compensation and Circular dated 23.02.1980 which in teeth of Section 8(4) of the Agrarian Reforms Act cannot be made applicable. In Lal Chand's case (supra), mutation under Section 8 of the Agrarian Reforms Act had been attested in favour of the petitioners and they had become owners of the land in question. It is in these circumstances that it was held by the Court that Circular dated 23.02.1980 cannot be made applicable.
13. In the instant case, admittedly the petitioners are allottees under Government order No. LB/7-C of 1958, meaning thereby they have been conferred the right of cultivation of the land in question. They are not proprietors or full owners of the land in question. The State still continues to be the owner in land in question. The question that arises for determination is whether or not the petitioners, who are only tenets of the land in question, are entitled to full compensation. In this regard, it would be apt to notice the provisions contained in section 29 of the J&K Land Acquisition Act, which reads as under:
"29. Market value not to form part of the amount of compensation.- Notwithstanding anything herein above contained, the market value of the land to be acquired shall not form part of the amount of 8 WP(C) No. 3286/2019 compensation to be awarded under this Act except to the extent of one-third share thereof or enter into consideration except to that extent in assessing such compensation, where the land to be acquired is situate in a place in which the land is owned directly by the Government as proprietor."
14. From a perusal of the aforesaid provision, it is clear that in a case where a land to be acquired is owned directly by the Government as a proprietor, the market value of the land to be acquired cannot form part of the amount of compensation to be awarded except to the extent of one-third share amount thereof, meaning thereby that in a case where ownership of the land vests with the Government, only one-third of the market value of the land is to be paid as compensation to the interested person(s). It is in light of this provision that Government instructions vide Circular dated 23.02.1980 have been issued by the Revenue Department.
15. In view of the foregoing discussion, it is clear that the petitioners have a limited right of possession/cultivation of the land in question and as such, they cannot be paid the full compensation in view of the provisions contained in section 29 of the Land Acquisition Act. Had it been a case where proprietary rights in respect of the land in question would have been conferred upon the petitioners, then Circular dated 23.02.1980 to the extent it curtails the amount of compensation payable to certain categories of interested persons, could not have come in the way of the petitioners. In the cases of Lal Chand (supra) and Nissar Hussain (supra), the petitioners therein were full owners of the acquired land as such, the Circular dated 23.02.1980 could not have been made applicable to the those cases, whereas in the instant case, admittedly the petitioners are not the absolute 9 WP(C) No. 3286/2019 owners/proprietors of the land in question therefore, they cannot claim full compensation.
16. For the foregoing reasons, I do not find any merit in the instant writ petition, as such, the same is dismissed.
(SANJAY DHAR) JUDGE Jammu 02.03.2024 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes